Iteshi v Bar Standards Board

A disciplinary appeal under CPR Part 52.11 is a review. The High Court may intervene only where the tribunal’s decision was wrong or unjust because of a serious procedural or other irregularity. A professional code may apply to unregistered, non-practising barristers where its terms so provide. Being made subject to a restriction or sanction may constitute behaviour for the purposes of a professional duty, even though the underlying conduct occurred earlier. An indefinite restriction of proceedings may justify disbarment where lesser sanctions would fail to maintain public confidence in the profession.

A disciplinary tribunal found that John Iteshi, an unregistered and non-practising barrister, had breached Core Duty 5 in the BSB Handbook by being made subject to an indefinite restriction of proceedings order under section 33 of the Employment Tribunals Act 1996. The tribunal proceeded in his absence and ordered disbarment and expulsion from the Middle Temple.

Mr Iteshi appealed to the Administrative Court. He challenged the application of the Handbook, the temporal basis of the charge, apparent bias, the fairness of proceeding in his absence, the finding that being subject to the order was behaviour, and the proportionality of disbarment.

1. Appeal dismissed. Under CPR Part 52.11, the appeal was a review. The court could intervene only if the tribunal’s decision was wrong or unjust because of a serious procedural or other irregularity.
2. The BSB Handbook applied to all barristers within its defined scope, including unregistered barristers. It was reasonable to expect every member of the profession to inform themselves of the professional standards governing them.
3. The charge concerned the appellant’s being made subject to the restriction of proceedings order on 12 March 2014, when the new Code was in force. It did not charge the earlier conduct which had led to that order. The temporal objection therefore failed.
4. The tribunal was independent of the BSB. Applying the test in Porter v Magill [2001] UKHL 67, an informed and fair-minded observer would not conclude that there was a real possibility of bias merely because the appellant had previously lost proceedings or had challenged the Bar Council.
5. The tribunal was entitled to proceed in the appellant’s absence. He had notice, did not seek an adjournment, and the respondent’s submissions fairly addressed the points he had raised. The tribunal was also entitled to refuse a further adjournment before sentence; Sukul v BSB [2014] EWHC 3532 was distinguishable.
6. “Behaviour” in Core Duty 5 could include inactivity and being made subject to a restriction or sanction resulting from earlier acts or omissions. The tribunal was therefore entitled to find that becoming subject to the order amounted to behaviour likely to diminish public confidence.
7. Disbarment was available and proportionate. The disciplinary purpose was protection of the public and maintenance of confidence in the profession, not punishment. The indefinite order meant that lesser sanctions could leave the appellant entitled to call himself a barrister despite the continuing restriction. The approach was consistent with the principle cited from Bolton v The Law Society [1994] 2 All ER 486.

The appeal failed and was dismissed. Consequential orders were left for written submissions.

1. Disciplinary Tribunal: On 16 October 2015, found the charge proved in the appellant’s absence and ordered disbarment and expulsion from the Middle Temple.
2. High Court (Administrative Court): The appeal was dismissed. The tribunal’s decision was neither wrong nor unjust because of a serious procedural or other irregularity.